Seventh Circuit: Board Theory of OSC Remedy Exhaustion Too Stringent

A Special Agent at the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms filed an Individual Right of Action appeal with the Merit Systems Protection Board, alleging that his supervisors retaliated against him after he disclosed his suspicion that another agent had improperly shot at a fleeing suspect, provided an inaccurate report of the shooting incident, and had committed perjury during the subsequent criminal trial.

An MSPB administrative judge dismissed the appeal and the full Board affirmed the dismissal, finding that the employee had failed to prove a key jurisdictional element of this kind of appeal: that he had “exhausted his administrative remedies” with the Office of Special Counsel. On January 29, 2018, in its first review of a decision of the Merit Systems Protection Board since Congress temporarily expanded judicial review beyond the Federal Circuit, the Seventh Circuit Court of Appeals reversed the dismissal, and remanded the case back to the Board for an adjudication of the merits.

The employee filed a whistleblower complaint with the Office of Special Counsel alleging that after he reported his suspicions about the improper firearm discharge and subsequent testimony to his supervisors, he was subject to retaliation. Specifically, he alleged that he was denied promotions, demoted from his position as an acting group leader, removed from the Joint Terrorism Task Force, and involuntarily detailed to another city in retaliation for his disclosure. OSC declined to investigate his complaint, informing the employee that he had not made a disclosure protected by the statute and that he had failed to provide sufficient evidence to support his allegations of retaliation.

After OSC declined to investigate, the employee appealed to the MSPB, but the Administrative Judge dismissed his appeal and the Board affirmed that dismissal for lack of jurisdiction, reasoning that he had not satisfied the requirement that he “seek corrective action before the Special Counsel before seeking corrective action from the Board.” The MSPB dismissed the appeal because: 1) the employee did not include a copy of his complaint to OSC; 2) the employee failed to offer sufficient evidence that he made a protected disclosure; and 3) the employee did not provide definitive proof that he was a victim of retaliation.

The appeals court held that the employee’s failure to include a copy of his OSC complaint in his Board appeal was not fatal, as no applicable statute or regulation imposed that requirement, the employee’s sworn testimony was that he did file an OSC complaint that was declined, and because it would have been possible, were there questions about whether a complaint was filed, to obtain a copy of the complaint from OSC.

The appeals court also noted that the Board’s refusal to consider materials that a complainant cannot prove were submitted to OSC is not reasonable. The appeals court found that OSC “instructs federal employees wishing to file a formal complaint to type allegations into a webform on the agency’s website,” but does not warn whistleblowers that failure to save a copy of the form before submission on the website would risk dismissal of any appeal.

The appeals court also disagreed with the Board, and found that the employee did not fail to offer sufficient evidence that he made a protected disclosure. According to the appeals court, the employee’s disclosure explicitly accused another federal employee of suspected perjury, and provided sufficient evidence to justify such a suspicion worthy of consideration by his superiors, meeting the “reasonable belief” standard when reporting a suspected violation of law, rule, or regulation under 5 U.S.C. § 2302(b)(8).

The appeals court held that the Board erred when it dismissed the appeal for failure to exhaust administrative remedies in part because the employee did not prove his allegations of retaliation to OSC. According to the appeals court, “the Whistleblower Protection Act requires only that a complainant fairly present his claim with enough specificity to enable [OSC] to investigate. The Act itself and its implementing regulations do not require a whistleblower to prove his allegations before the OSC – otherwise, what need court there be for an investigation?”

The appeals court found that the Board’s “stringent application of the Whistleblower Protection Act’s exhaustion requirement can effectively prevent all but the savviest federal whistleblowers from receiving a hearing on the merits.” Citing Lego v. Twomey, 404 U.S. 522, 527 (1972), the appeals court stated that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.”

For the above stated reasons, the Seventh Circuit Court of Appeals granted the employee’s petition for review of the dismissal of his appeal, and remanded the case to the Board for further proceedings consistent with the appeals court opinion.